Supreme Court justices demitting office are often subject to a legal scorecard. Assessments go through their rulings and catalogue the good, the bad and the ugly. In more sophisticated assessments, the criteria is not in agreement with those doing the assessing. Often you may disagree with a judgment but it can still be a product of sound or at least plausible legal reasoning. Justice D Y Chandrachud had a long tenure both as a judge and chief justice. In such a long career of a highly pedigreed judge, there are bound to be some judgments that rack up a positive score: At least initially, he showed considerable promise in areas of personal freedom — reproductive rights, right to privacy, gender equality. There are some fine economic and administrative law judgments. But this framework of tallying up a score-card seems entirely inappropriate for as consequential a judge as Justice Chandrachud.
Simply put, if a casting director had chosen a chief justice for the Age of Modi, she would not have found a better candidate. This is an age that is characterised by authoritarianism and communalism. Just as Prime Minister Narendra Modi brilliantly used the democratic form to institutionalise these ends, Justice Chandrachud followed the form of a liberal constitutionalism to achieve the same ends: Consistently legalising majoritarianism.
At issue is not simply the Ayodhya judgment where the Supreme Court went even beyond the judgment of the Allahabad High Court. As a one-off judgment, it could be treated as a debatable aberration. As part of a pattern, diluting the Places of Worship Act, creating a legal environment where lots of speech is risky but communal hate speech is not, the delayed restoration of statehood to Kashmir, created a stench of majoritarianism. There are orders that might be salutary, like the recent one on bulldozer justice. But these are of a pattern: Coming too late after considerable damage has been done, and the signals of where the state will go are already enshrined.
On authoritarianism, it gets even worse. Whatever the lofty judicial pronouncements, we were not assured that habeas corpus would be protected. It did not protect dissenters’ rights, or did so only after the state’s processes had literally killed many of them. The arbitrary conduct of agencies continued unabated. Even in possible corruption or conflict of interest cases which had high political stakes, the use of procedural cover-ups to prevent a fair reckoning was astounding. As a chief justice who exercised the discretion that comes with the power of the roster and constitution of the benches, he bears full responsibility for this corrosion. It was also a Court which, in so many cases, from the Maharashtra Assembly case to Article 370, from Delhi government crisis to electoral bonds, used discretion over timing to blunt the force of its own judgment. In effective terms, he left our liberties less secure, our institutions less strong, our faith in the Court weaker.
The scorecard approach in relation to Justice Chandrachud rests on a category mistake. It goes something like “X number of good judgments, Y number of dubious ones.” Justice Chandrachud was more artful than this kind of arithmetic would suggest. Like the prime minister, he could throw a dollop of glossy paint on a building while letting the foundations rot with judicial termite. In retrospect, the good judgments performed exactly that function: They keep the veneer and the form alive, to allow us to pretend that we might still get justice from the Chief Justice of India.
He was a judge for the Age of Modi because he personified the style of this age. This is an age that converts civil and political rights into an act of personal beneficence. His self-defence on civil liberties was: “I gave so many people bail, from A to Z”, rather than the “law and process was applied consistently and fairly. Umar Khalid got the same consideration as Arnab Goswami.” One is tempted to paraphrase the line from Macbeth: “The Justice doth protest too much.” In some administrative areas, digitisation, live streaming, the obsession with paper-lessness, were worthy goals in their own right, all of a piece with the techno modernism of our time. But in judicial selection, we are no more confident that the court is secure with better judges.
Unusually for a judge, he was always in the public eye: If Modi’s Mann Ki Baat was a genial Sunday performance, the chief justice made sure, through a PR blitz, that we always got a glimpse into his heart. The PM constantly judges his own performance. But for a judge to be a judge in his own cause reeks of injudiciousness. The content, in a subtler way, was also the same. The chief justice is entitled to his faith. He can even draw strength from it for his duties to the Republic. Thinking that we will be judged by a higher power ought to make us more honest and courageous. But the regular performance of this faith in the public eye, and the kitschy bowdlerisation of Hinduism for a public performance in the eye of the camera became routine. From the “dhwaja of justice” that Somnath inspired, to the new goddess of justice, to the piece de resistance, a full camera crew performance of a private puja with the prime minister, was very much in tune with cheapening of religion in our times. But more seriously, the performance shook faith in both the independence of the judiciary and constitutional secularism.
The similarities go on. The prime minister on a good day can be a master of lofty sentiments. Justice Chandrachud’s sometimes brilliant disquisitions on liberty, equality and fraternity in many judgments would bring tears to the eyes of even seasoned political theorists. Yet in both cases, the disjunction between what was being professed and what was being done, either to distract or create a trail of plausible deniability, is too vast. The net effect of that scholarship, like the PM’s speeches, was not to inspire, but to create a sense of unmeaning. Like the PM, the CJI had a post-modern style that favoured a sense of injured innocence: The Supreme Court as victim of media misreporting.
India has had a terrible run of chief justices recently. In each of those cases, you could treat the infirmity of the judge as an individual failing, confined to personal matters or a limited number of cases. But the subtle, pervasive and systematic decimation of constitutional values he allowed, the performative example he set, and the scepticism he generated that the learned and the suave can do fearless civic duty, made Justice Chandrachud arguably a chief justice more damaging than Justice A N Ray.
The writer is contributing editor, The Indian Express
